According to the sixth amendment, the only criminal charges for which a sentence can be given are issues that either guilt has been admitted, or guilt has been established beyond a reasonable doubt by a jury. For defendants who exercise their 6th amendment right to a "trial by jury" only the jury is constitutionally allowed to determine guilt, not the judge, prosecutor or probation officer. Therefore a person can only be sentenced for crimes that a jury has determined that they are guilty of beyond a reasonable doubt. In other words, the constitution did not authorize a Federal Judge, Federal Prosecutor, Probation Officer, or a "collusion between the 3 of them" to determine "guilt or innocence" on any alleged criminal activity. If a defendant exercises their constitutional right to a trial by jury, every charge that could result in a sentence must be brought before the jury and proven by the standard of "guilty beyond a reasonable doubt-not by a preponderance of the evidence" - or no sentence may be assessed for that charge. As Justice Stevens wrote in his opinion of the Supreme Court's decision on Federal Sentencing Guidelines:
"WE RECOGNIZE THAT IN SOME CASES JURY FACT-FINDING MAY IMPAIR THE MOST EXPEDIOUS AND EFFICIENT SENTENCING OF DEFENDANTS. BUT THE INTEREST IN FAIRNESS AND RELIABILITY PROTECTED BY THE RIGHT OF A JURY TRIAL-A COMMON-LAW RIGHT THAT DEFENDANTS ENJOYED FOR CENTURIES AND THAT IS NOW ENSHRINED IN THE SIXTH AMENDMENT - HAS ALWAYS OUTWEIGHED THE INTEREST IN CONCLUDING TRIALS SWIFTLY". Then he quotes Blacksone:
"HOWEVER CONVENIENT THESE (NEW METHODS OF TRIAL, I.E. PLEA BARGAINS & CIRCUMVENTION OF THE JURY'S JUDGEMENT ON MAJOR PORTIONS OF THE CHARGES), MAY APPEAR AT FIRST, (AS DOUBTLESS ALL 'ARBITRARY' POWERS-AS EXERCISED BY A JUDGE, AS OPPOSED TO A JURY, WELL EXECUTED, ARE THE MOST CONVENIENT), YET LET IT BE AGAIN REMEMBERED THAT DELAYS, AND LITTLE INCONVENIENCES IN THE FORMS OF JUSTICE, ARE THE PRICE THAT ALL FREE NATIONS MUST PAY FOR THEIR LIBERTY IN MORE SUBSTANTIAL MATTERS. THAT THESE INROADS UPON THIS SACRED BULWARK OF THE NATION ARE FUNDAMENTALLY OPPOSITE TO THE SPIRIT OF OUR CONSTITUTION; AND THAT, THOUGH BEGUN IN TRIFLES, THE PRECEDENT MAY GRADUALLY INCREASE AND SPREAD, TO THE UTTER DISUSE OF JURIES IN QUESTIONS OF THE MOST MOMENTOUS CONCERNS." The above statement from Blackstone is a strikingly accurate description of the current status of the lack of adherence by the Federal Justice System to the 6th amendment of the Constitution! The present use and, mis-use of the plea bargain now successfully convinces 97% of all defendants that they should ignore the wisdom of our founding fathers. Through manipulation, threats, promises & yes-fraudulent, (i.e. misrepresentation to the defendant of the prosecutor's offer to the defendant), tactics, Blackstone's concerns are now reality. By "BEGINNING IN TRIFLES, THE PRECEDENT MAY GRADUALLY INCREASE AND SPREAD, TO THE UTTER DISUSE OF JURIES IN QUESTIONS OF THE MOST MOMENTOUS CONCERNS." Not only have the fraudulent methods used by Federal Prosecutors resulted in persuading 97 of every 100 defendants to plead guilty & circumvent a "trial by jury", the system has degenerated to the degree that the 3 who do choose a trial by jury will not actually receive a "trial by jury". For example, in my case, as a man with no previous charges, arrests or convictions, at the age of 70 years, I was given 24 years, the equivalent of life in prison. If I had received sentencing only on the counts of my indictment, my sentence would have been no more than 4 years. (And, I should add that, if the prosecution had not lied repeatedly, I would have been found guilty of no illegal activity!) The remaining 20 years was "added on" through unconstitutional judgements by the prosecution & probation officer, & agreed upon by the judge.
This means that more than 85% of my sentence was not determined by fact-finding by the jury. Contrary to "evidence & testimony" regarding the 20 years of my sentence being heard & determined by the jury, 85% of my sentence was determined by a "collusion" between the prosecution, probation office & senior federal judge. For a person to speak of my trial as a "trial by jury", when only 15% of my sentence was calculated from the jury verdict, would certainly be misleading at best & in reality was a "conspiracy to defraud" between the prosecution, probation officer & judge, legalized, until Jan. 05, by the Sentencing Guidelines. In summary on this issue, yes, Blackstone's concern of discarding a person's right to a trial by jury is totally justified. Of 60,000 federal sentences handed down each year, 58,200 of that 60,000 were-mostly fraudulently-convinced to forego a jury trial altogether; and like myself, the remaining 3% who chose a jury trial did not receive it!
Therefore, under the sentencing guidelines that were written in 1984, there have been very few, if any, trials that were "100% by jury!"
What is being done about this true "downward departure", (disappearing act!), of constitutional justice as defined in the 6th amendment? In the recent consideration of this situation by the Supreme Court, here are excerpts; continuing Justice Stevens opinion: "ANY FACT, (OTHER THAN A PRIOR CONVICTION), WHICH IS NECESSARY TO SUPPORT A SENTENCE EXCEEDING THE MAXIMUM AUTHORIZED BY THE FACTS ESTABLISHED BY A PLEA OF GUILTY OR A JURY VERDICT MUST BE ADMITTED BY THE DEFENDANT OR PROVED TO A JURY BEYOND A REASONABLE DOUBT." "WE HOLD THAT BOTH COURTS CORRECTLY CONCLUDED THAT THE SIXTH AMENDMENT, AS CONSTRUED IN BLAKELY, DOES APPLY TO THE SENTENCING GUIDELINES."
Justice Scalia's opinion excerpts
"CONGRESS WAS SO ATTACHED TO HAVING 'JUDGE'S' DETERMINE 'REAL CONDUCT', ON THE BASIS OF BUREAUCRATICALLY PREPARED, HEARSAY-RIDDLED, PRESENTENCE REPORTS THAT IT WOULD RATHER LOSE THE BINDING NATURE OF THE GUIDELINES THAN ADHERE TO THE OLD-FASHIONED PROCESS OF HAVING JURIES FIND THE FACTS THAT EXPOSE A DEFENDANT TO INCREASED PRISON TIME. THE MAJORITY'S REMEDIAL CHOICE IS THUS WONDERFULLY IRONIC: IN ORDER TO RESCUE FROM NULLIFICATION A STATUTORY SCHEME DESIGNED TO ELIMINATE 'DISCRETIONARY SENTENCING', IT DISCARDS THE PROVISIONS THAT ELIMINATE DISCRETIONARY SENTENCING. THAT IS THE PLAIN EFFECT OF THE MAJORITY'S DECISION."
In common language; "In order to improve the appearance of our face, as well as our sense of smell we cut off our nose to spite our face". Another way of simplifying Justice Scalia's rather complex statement; "The second ruling handed down by the Supreme Court's majority eliminates the very means by which it could obtain its stated purpose."
On the issue of whether to abolish the sentencing guidelines altogether, or to keep them intact, Justice Breyer wrote a second ruling. The following excerpt from Justice Breyer states the second ruling set forth by the Supreme Court: "WE ANSWER THE QUESTION OF REMEDY BY FINDING THE PROVISION OF THE FEDERAL SENTENCING STATUE THAT MAKES THE GUIDELINES MANDATORY INCOMPATIBLE WITH TODAY'S CONSTITUTIONAL HOLDING."
In other words, the first decision authored by Justice Stevens from which we have quoted, stated that sentences for crimes allegedly committed must be proven to a jury beyond a reasonable doubt, as opposed to the judge being mandated to sentence a person for alleged crimes submitted by a collusion between the prosecution, probation officer & judge. Justice Breyer is saying that this ruling by the Supreme Court, if enacted alone, would render the mandatory guidelines incompatible with the new ruling. Justice Breyer continues with his "solution" or "remedy". "SO MODIFIED, THE FEDERAL SENTENCING ACT MAKES THE GUIDELINES EFFECTIVELY ADVISORY". Therefore Breyer's "remedy" is that, rather than throw the guidelines out, as the first decision would effectively have done his "remedy" in the second ruling was to keep the guidelines in, serving only as "advisory" guidelines, as opposed to "mandatory" adherence to the guidelines. Breyer continues with: "THE COURT HOLDS THAT, IN THE CIRCUMSTANCES MENTIONED, THE SIXTH AMENDMENT REQUIRES JURIES, NOT JUDGES, TO FIND FACTS RELEVANT TO SENTENCING." Therefore two facts emerge that greatly alter the previous conditions of the sentencing guidelines:
1) The first ruling clearly states, & is supported in the second ruling, that the "finding of any facts relative to sentencing must either be admitted or found by a jury, not a judge."
2) The second ruling, while recognizing the first ruling, adds that, whereas the sentencing guidelines remain intact, the judge is not required to follow them. However, the judge is told to use them only in an advisory capacity. At this time I do not have a transcript of the hearings. My only source of information is the media. Although I have not heard or read conclusive statements to this effect, it seems reasonable to assume the following from information I have had access to:
1) A defendant can only be sentenced by facts determined by jury, unless they have pled guilty to the facts, (& that's another subject known as 'plea bargain' that I have addressed separately.)
2) Therefore the practices mandated by the sentencing guidelines, & followed for the past 21 years is, & always has been, unconstitutional!
3) The judge is no longer required to follow the guidelines, but they are encouraged to continue to follow them.
4) However, the judge is not permitted to follow the sentencing guidelines on any relative fact that is found by himself, the prosecution or the probation officer. All sentences can only result from charges to which a defendant has admitted guilt or charges that have been presented to a jury who determined that the defendant is guilty of the charges "beyond a reasonable doubt."
5) In plain English, according to the Supreme Court's ruling, every person who has served, or is currently serving time for sentences for which they did not either admit guilt, or were not found guilty of by a jury, is considered to be innocent of all such charges. This brings us to an extremely startling conclusion! We know that a person is cleared from a crime by discoveries such as DNA that doesn't match the perpetrator's, & that the wrongly accused is promptly released with compensation, (usually), for the time for which they were illegally incarcerated. Scores, if not hundreds of thousands of persons are now serving time for crimes for which they were unconstitutionally sentenced. Since that is unquestionably a fact, it follows that, according to our constitution, these persons were never convicted for crimes they are now serving time for! Quoting from the Supreme Courts' ruling, "A NEW RULE FOR THE CONDUCT OF CRIMINAL PROSECUTIONS IS TO BE APPLIED RETROACTIVELY TO ALL CASES - - - PENDING ON DIRECT REVIEW OR NOT YET FINAL". Therefore it is clear that all such persons whose "cases are still pending", in other words on direct appeal, writ of habeas corpus, etc., are eligible to pursue whatever the proper venue is, (?), to obtain their freedom, based on the sentence they should have received, i.e., by admission of guilt or "guilty by jury's decision."
However, any & all persons who are serving time for which they are illegally incarcerated must be declared as equally eligible for release. For example, no court would even consider initiating a ruling that said "all persons whose DNA clears them are being detained illegally". But then following that with a ruling that states: "However, even though ALL such persons are innocent, we will only release the innocent persons whose cases have not been closed. The rest of the innocent can rot in prison because we simply do not have time to "right our wrongs" by processing them for release & compensation." Of course that hypothetical may seem absurd to some, but it is totally relevant if you are now serving time that was unconstitutionally assessed! In other words, if a person is innocent because his DNA proves him innocent, in the same way, or even more so, if a person is innocent because the constitution itself states clearly that they were convicted & sentenced in violation of the "law of the land" upon which our nation was founded, that is the constitution, that person should be released even more readily!
Although it is not stated clearly in the information that I have available on the Supreme Court's ruling, it is implied that the wrongly imprisoned victim, whose case is not closed, should re-open their case in order that justice can be executed. However there would be many, (the majority of cases), in which the "reprimanded" prosecution & judge would search for, & find, factors that would arbitrarily increase their original unconstitutional sentence. Again I ask; does the court require a person who is cleared by DNA, or any other means, to go back to the court & give the power-hungry prosecution & judges an opportunity to arbitrarily introduce additional factors that could nullify the defendant's release, or even increase their sentence? Of course not! If a sentence has been executed illegally, the defendant has not legally been found to be guilty. And, until a person is found guilty, under our constitution they are innocent. Is the court saying that a person who has been suffering irreparable harm that has been illegally inflicted on them for 15 years of incarceration - is this person less - deserving of justice & their freedom, than a person who has only been wrongly incarcerated for 3 to 18 months deserves? Surely this is not the intent of the Supreme Court's Chief Justices, (?).
6) Another issue that is currently confusing about the Supreme Court's rulings is: It is agreed that there must be uniformity in sentences resulting from various criminal elements. Because of this it is advisable that a judge retain sentencing guidelines in an advisory, or even a mandatory, capacity. Whereas the Supreme Court's first ruling states clearly that all sentencing must be based on either an admission of guilt, or issues on which a defendant is found guilty be a jury of their peers, the second ruling implies that a judge actually is now given the discretion to ignore that all-important ruling, by following the sentencing guidelines in a new expanded role that gives the judge the option of taking or leaving "the stated ruling of the first decision." Surely this apparent contradiction is not, in reality, true?? In summary, based on information available to me at this time, this document represents my conclusion, as well as my inconclusions.
May justice prevail & our constitution remain forever.
Al Petty
09638-078
